Medical Liability Crisis and Tort Reform (Fall 2002)

Introduction
Many incremental mandates during the past decade have brought about changes in the way medical care is delivered. Many of the changes have resulted in physician dissatisfaction and frustration with the practice of medicine. Physicians have become increasingly concerned with the increases in their overhead expenses, the reductions in reimbursement for the medical services they provide, the intrusion of third-party regulatory networks into the clinical decision-making process, and the threat of medical malpractice litigation.(1)
For some physicians, the rewards of practicing medicine have finally become outweighed by its many outside negative influences. For example, a recent survey of West Virginia physicians revealed that more than 40 percent were considering moving out of...

Capping non-economic damage awards in medical malpractice cases is often proposed as a means to limit the burden of litigation and stem rising health care costs.(1,2) Such caps figure prominently in the current discussion of the so-called Patients' Bill of Rights.(3) Statutory limits on damage awards, however, present a few problems. Their potentially undesirable impact on the incidence of malpractice has been described.(4) In addition, legislative attempts to cap damages must overcome certain legal challenges: limits may restrict the right of access to the courts for redress of injuries and trial by jury under the Seventh Amendment to the United States Constitution and violate the guarantees of due process and equal protection of the laws under the Fourteenth Amendment. Indeed, although...

Introduction
For many reasons, our current medical liability system functions in an unjust an inefficient manner. Because there is little correlation between the filing of lawsuits and negligent care, the legal standard of medical negligence performs poorly in malpractice litigation. Since the legal system does not punish attorneys for inadequately investigating claims before they are filed, many medical malpractice lawsuits are frivolous. Overall, only about 20 percent of medical malpractice lawsuits are definitively related to adverse events due to negligence. Despite this, about half of all claims still result in plaintiff verdicts. Conversely, only about one in fifty negligent medical errors ever result in a malpractice claim. Therefore, the current system does not work well for...

Is the general practitioner being cast in the role of a medical reject or is there a holocaust of general practitioners?
"You cannot be on our hospital staff because you are not a board certified specialist," said the hospital. A holocaust maneuver by the hospital?
"You cannot be one of our physicians," said the HMO, "You do not have a specialty board we recognize." A holocaust maneuver by the HMO?
"You cannot be a staff physician or Medical Director in our long term care facility (nursing home) because you do not have boards that we recognize." A holocaust of the general practitioner by the nursing home?
"But I am board certified by the American Board of General Medicine!"
"We and the American Board of Medical Specialties do not recognize that board," they say. A holocaust maneuver?
"I...

The very first sentence in the body of the United States Constitution states clearly: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
The U.S. Supreme Court had often stated that every word in our Constitution holds equal weight. Therefore, when one reads the words "All legislative Powers" granted to the federal government "shall be vested in a Congress," a couple very inconvenient questions quickly come to mind: How is it that over one hundred federal agencies are also allowed to make law? And, how can the President and Supreme Court make legally binding law --- they call those laws rules, regulations, and executive orders?
James Madison, the Father of our Constitution, clarified the...

It is a forgotten fact that the first four out of five presidents of these United States were Virginians --- George Washington, Thomas Jefferson, James Madison, and James Monroe. Today they are glossed over in history classes; their great deeds ignored; their courage diminished; their honor trampled; their names defamed by the ignorant. They were, however, the giants who walked this land and taught a young country what duty, honor, country, and self-government meant. They taught many people of different nationalities, backgrounds, religions, sectional prejudices, how to become one people. They taught people how to walk together. The older folk refer to them as the Founding Fathers. But among themselves, the Founding Fathers called only one, Father --- George Washington. He was surely a...

Dear Dr. Corlin,
You probably don't remember me, but we met when I attended the California Medical Society lobbying session during my year as Alaska State Medical Society president, a dozen, or so, years ago.
I am a former competitive shooter and gun collector --- a gun nut, if you will. I am also a life member of the NRA (since 1947).
At the beginning of my tour as ASMA president, I reviewed the AMA policy on gun control. It was clear that the authors of those policy items knew nothing of gun issues, but were interested only in maximum restriction of citizen liberties. I decided to try to modify these policies by pointing out the "junk science" characteristics, and pointed out that physicians would not tolerate this sort of thing if it pertained to genuine medical topics. Further, I...

Dear Editor,
Bioethics is a monster, gestated in big government and the insurance industry.
There were no bioethics courses in my medical school...only a Roman Catholic medical ethics course and exhortations about the tradition of Hippocrates. That was all any physician needed. That is all any physician needs now.
Futility, a major tenet of bioethics, "is a value judgment, not a medical determination" and "determinations about futility involve paternalism" in the most perverse and futile way. Futility decisions are based on prejudice and bias against disabled people and minorities. In addition, "futile care theory gives some of medicine's most important health care decisions to strangers." Futilitarians are quoted as calling the murderous Kevorkian approach to be "utopian utilitarianism...

Obstetricians Forced Out of Business
"Doctors who specialize in delivering babies and treating pregnant women are closing their offices, leaving states such as Florida and New York, or abandoning their profession because they can't get liability insurance, even at sky-high rates.
" 'One New Jersey specialist, without a legal blemish on his practice record, was finally able to secure insurance at the cost of $300,000 a year,' Dr. Thomas Purdon, president of American College of Obstetricians and Gynecologists (ACOG), told United Press International.
" 'We are in a crisis situation,' Purdon said at the annual meeting of ACOG.
"Organization leaders issued a 'Red Alert' warning that without relief from state and federal legislation, many rural areas will be without obstetricians.
"Not only...

Year ­ 1776; Place ­ Philadelphia, Pennsylvania, U.S.A. Event ­ Drafting of the Declaration of Independence
When the Founding Fathers, a small group of American colonists, gathered to formalize their conviction that the thirteen colonies had had enough of the dictatorial oppression of King George and the British government, it was a lonely gathering. Historians tell us that less than four percent of the colonists were in sympathy with this group on the question of secession. The remainder had no opinion and/or were willing to remain loyal to the King. This latter majority "didn't want to make waves." They preferred to "keep peace in the family." They didn't want to "rock the boat." Yes, they favored the "comfort zone" over standing up for freedom.
Physicians, does that sound...

With the definite resurgence of the medical liability crisis, a recapitulation of the AMA's campaign for the implementation of tort reform in the last several years is in order to better understand where we have been and where we are headed in our struggle for meaningful and substantive medical liability ("malpractice") tort reform.
In fact, as this special issue of the Medical Sentinel demonstrates, we are facing another serious surge in the medical liability crisis. Premiums for physicians are skyrocketing and medical liability insurers are leaving many states and abandoning their former client physicians, leaving them without coverage.
Obstetricians have been particularly hard hit in this medical liability explosion, but the crisis affects every one of us, from physicians to patients....

To preclude legalized plunder by the federal government, the Founding Fathers provided for a balance of power not only between the three branches of the federal government - i.e., the Executive, the Legislative, the Judiciary - but also between the federal government and the States. This lineage (pecking order) must be strictly obeyed. Perusal of the founding documents, including the Declaration of Independence, the U.S. Constitution, The Federalist Papers, and personal papers of the framers,(1) reveal an organization table, to wit:
· God is sovereign --- over all.
· God created a man and endow-ed him and his progeny with certain prerogatives as delineated in His Word.
· Men created each State and gave each its delegated prerogatives as delineated in the State Constitution of each State...

"Central Illinois is a 'hotbed' of unjustified prosecutions against physicians, according to a prominent Peoria doctor. Chester Danehower, president-elect of the Association of American Physicians and Surgeons (AAPS), said every doctor in America should be worried about the growing trend, and every patient or potential patient should worry about the resulting erosion of medical care in this country.
"More than 100 Peoria-area physicians gathered last spring at Barrack's Cater Inn to hear Andrew L. Schlafly, Esq., general counsel for the association, describe some of the reasons physicians are being prosecuted and sent to prison.
"The bulk of the charges in the 15 active cases Schlafly is involved with concern billing codes for Medicaid and Medicare reimbursements.
"The guidelines for...

"St. Paul recently announced they are abandoning medical pro-fessional liability insurance for physicians nationally. What does this mean for the physicians currently insured by them? St. Paul has announced they will non-renew each of their physician policyholders at their next policy renewal date.
"What Georgia physicians are again experiencing are the very business conditions that led to the formation of MAG Mutual by the Georgia physician community when the large commercial carriers exited the marketplace. With strong physician leadership at that time, MAG Mutual was formed to fill this void charged with the mission to provide competitive, comprehensive, medical professional liability insurance.
"Today, MAG Mutual Insurance Company is the largest physician-owned, mutual insurer in the...